The
President of the United States has no greater responsibility than
protecting the American people from threats, both foreign and
domestic. He is vested by the Constitution with the authority and
responsibility to accomplish this essential task. In taking his
oath of office, the President swears to "preserve, protect, and
defend the Constitution of the United States," the Preamble of
which makes providing for the "common defense" a top priority.
Congress must now make its voice heard on a key issue of national
security and bring to a vote support for President George W. Bush's
strategy for pursuing the war on terrorism in the way that he, as
commander in chief, deems necessary.
As
the nature of the threats to the United States changes, so must the
nation's approach to its defense. To fulfill his constitutional
responsibility, the President must have the flexibility to address
these threats as they emerge; and, given the proliferation of
weapons of mass destruction by nations hostile to America, in an
increasing number of cases, this may require applying military
power before the United States or its interests are struck. In
situations where the evidence demonstrates overwhelmingly that
behavioral trends, capability, and motives all point to imminent
threat, it may be necessary for the President to attack
preemptively.
While there has been little argument over
the use of armed force in Afghanistan to retaliate against an act
of aggression, preemptive action is also clearly justifiable
because the following principles apply:
PRINCIPLE #1:
The right to self-defense is codified in customary international
law and in the charter of the United Nations. The most
basic expression of a nation's sovereignty is action taken in
self-defense. Traditional international law recognizes that
right, and the United Nations Charter
is wholly consistent with it. Article 51 of the U.N. Charter
states: "Nothing in the present Charter shall impair the inherent
right of individual or collective self-defense if an armed attack
occurs against a Member of the United Nations."
PRINCIPLE #2:
The right of "anticipatory self-defense" allows for preemptive
strikes. The right to self-defense
incorporates the principle of anticipatory self-defense, which is
particularly salient in the war on terrorism. The reality of
international life in the 21st century is that nations or
organizations that wish to challenge America or Western powers
increasingly are seeking weapons of mass destruction to achieve
their political objectives. The only effective response may be to
destroy those capabilities before they are used. The tenet of
traditional, customary international law that allows for this
preventive or preemptive action is "anticipatory self-defense."
An oft-cited incident that validates the
practice of anticipatory self-defense as part of international law
occurred in 1837. That year, British forces crossed into American
territory to destroy a Canadian ship, anticipating that the ship
would be used to support an anti-British insurrection. The British
government claimed its actions were necessary for self-defense, and
the United States accepted that explanation.
While there is debate as to whether or not
this principle of international law survived the adoption of the
U.N. Charter, the fact is that neither the charter nor the actions
of member states since the charter came into force outlaw the
principle. Israel has invoked the right
of anticipatory self-defense numerous times throughout its history,
including incidents in 1956 when it preemptively struck Egypt and
in 1967 when it struck Syria, Jordan, and Egypt as those nations
were preparing an attack.
The United States has also asserted its
right to anticipatory self-defense. A classic example occurred in
1962 when President John Kennedy ordered a blockade of Cuba--a
clear act of aggression--during the Cuban missile crisis. Although
no shots had been fired, President Kennedy's preemptive action was
imperative for the protection of American security. During the
1980s, President Ronald Reagan invoked this right at least twice:
first, in 1983, when he ordered an invasion of Grenada to protect
U.S. nationals from potential harm, and again in 1986, when he
ordered the bombing of terrorist sites in Libya.
When any nation that is overtly hostile to
America or its allies is developing weapons of mass destruction,
has ties to international terrorist, and intelligence data give
reason to believe that there is an intent to attack, the threshold
of the United States' right to invoke a response based on
anticipatory self-defense has clearly been passed.
PRINCIPLE #3:
The United States government alone has the authority to determine
what constitutes a threat to its citizens and what should be done
about it. Under the U.S. Constitution, the authority to
determine when it is appropriate for the United States to invoke
and exercise its right to use military force in its own defense is
vested in the President, as commander in chief of the armed forces,
and Congress, which has authority to raise and support armies and
to declare war. No treaty, including the U.N. Charter, can
redistribute this authority or give an international organization
veto power over U.S. actions that would otherwise be lawful and
fully in accord with the Constitution.
PRINCIPLE # 4:
The President as commander in chief has the authority to use
America's armed forces to "provide for the common
defense." The Constitution gives Congress the authority to
declare war but makes the President commander in chief. Since the
birth of the nation, this division of power has given rise to
tension between the executive and legislative branches of
government regarding who can authorize the use of force.
Debate regarding this matter gave rise to
the War Powers Resolution, which states that the
President can use force to protect the nation without congressional
authorization for 60 to 90 days. Many, including every President
since this resolution came into force in 1973, have regarded the
document as unconstitutional. Most, however, agree that the
President has the authority to defend America from attack, even in
the absence of congressional authorization. It
should be noted that if Congress is truly opposed to any military
action authorized by the President, it has the power to defund that
mission, making it impossible to carry out.
Learning From the September 11
Attacks
The
President is justified in applying preemptive military force to
fight the war on terrorism. To fail to do so in spite of a threat
of imminent attack would be to ignore the lessons learned from
September 11 regarding the nature of the threats that face America
in the 21st century. Before those attacks, U.S. authorities were
aware of Osama bin Laden, his resources, and his hatred for
America. They knew that he was a terrorist and that he had attacked
America in the past. They were also aware that he was running
terrorist training camps in Afghanistan with the blessing of the
Taliban regime. Despite this information,
neither the United States nor the international community took
decisive action to address bin Laden's imminent aggression.
In
the post-September 11 world, such complacency is not acceptable. A
series of lessons can be learned from the September 11 attacks and
the initial prosecution of the war on terrorism. These lessons must
be taken into consideration when future action against terrorists
and terrorist states is contemplated.
LESSON #1:
Deterrence alone is not sufficient to suppress aggression.
Both Osama bin Laden and the Taliban could have predicted that the
United States would respond to their attacks, yet they acted
anyway. Although numerous reports and studies warned of the growing
threat of catastrophic terrorism, the United States, for the most
part, ignored those warnings. The activities of a worldwide,
organized terrorist network were treated instead as criminal
behavior.
The conclusion of recent studies has been that the risk of
America's being struck with a weapon of mass destruction has
increased: In other words, the effectiveness of deterrence has
decreased. Such massive acts of terrorism could be perpetrated by
an organization acting alone, an organization working with a
nation, or a nation acting alone. It would be nearly impossible to
deter all of these hostile entities, given that each state and each
organization has a different motivation.
LESSON #2:
Attacks can occur with little or no warning. The emergence
of global communications, advances in technology, and the
globalization of terrorism have significantly decreased the time it
takes not only for a potential threat to be identified, but also
for that threat to emerge as an act of aggression. In many
instances, a specific threat may not be identified until the act of
aggression has taken place, rendering preventive measures
irrelevant.
In this world of drastically shortened
time lines, it is essential that the President have the authority
to act decisively, in short order, to defeat aggressors when a
preponderance of information points to a threat of imminent attack.
For example, although the President did not have information that
al-Qaeda operatives were going to commandeer four passenger jets
and use them as guided cruise missiles, there was ample evidence
that threats to the United States would likely emerge from
Afghanistan, where al-Qaeda, an organization responsible for past
attacks on America, was present and supported by the Taliban.
LESSON #3: The
use of a weapon of mass destruction is reasonably likely.
On September 11, Americans were killed on a massive scale. Hostile
entities increasingly view weapons of mass destruction (WMD) as
political assets. North Korea may have two nuclear weapons; Iran has active chemical,
biological, and nuclear weapons programs; and Iraq has not only
active WMD programs, but also a history of using such weapons. All
three countries have ballistic and cruise missile programs.
Even terrorist organizations, such as
al-Qaeda, are involved in developing and using WMD, as was
evidenced by recently revealed videos in which al-Qaeda was
experimenting with chemical weapons on dogs. Other
reports link Osama bin Laden to the pursuit of a nuclear or
radiological device. In 1995, terrorists in Japan
used sarin gas to kill civilians in a Tokyo subway.
LESSON #4: A
deadly synergy is created when hostile state and non-state agents
conspire. While hostile states continue to threaten
America and its interests, the threat of non-state actors, such as
al-Qaeda, is growing. The danger increases when states and
non-state actors work together. States have resources--including
territory, finances, an international diplomatic presence, and
trade--that non-state actors do not have. On the other hand,
non-state actors are able to operate globally and can act largely
undetected.
The reality of the 21st century is that a
state like Iraq can harness its resources to develop a weapon of
mass destruction and collude with non-state actors to deliver that
weapon. This symbiotic relationship can operate undercover,
possibly without the knowledge of the American government. Thus, a
state hostile to the United States may appear to be acting within
the bounds of normal diplomatic behavior while at the same time
covertly supporting aggressive endeavors of its non-state
allies.
LESSON #5: The
future envisioned by America's enemies is incompatible with U.S.
security. Prior to September 11, "soft
diplomacy"--including multilateral arms control, aid incentives,
and appeals to reason--was the preferred approach in dealing with
hostile regimes. Although the ideals of those regimes and those of
the West are in direct contrast, there was hope that, eventually,
these despots would transform, fall, or simply discontinue their
threatening activities. This policy continued as the approach of
choice even though it has been demonstrably ineffective: North
Korea continues to sell ballistic missiles, Iran continues to
support terrorism, and Iraq continues to develop nuclear bombs.
On September 11, however, the idea that
such hostile regimes and the United States could simultaneously
pursue their respective interests lost all credibility. It was
clear that America's enemies were willing to use unprovoked
violence to achieve their objectives. The United States could no
longer postpone acting against terrorists and nations that support
them.
The Case Against Iraq
Under Saddam Hussein's rule, Iraq is a
direct threat to the United States, its interests, and
international peace and stability throughout the world. Although
the United States had recognized Saddam as a threat ever since his
invasion of Kuwait in 1991, it was never compelled to take decisive
action against him. Given what the September 11 attacks revealed
about the nature of the threats facing the nation, the United
States can no longer afford to wait to take action regarding
Iraq.
Saddam Hussein's hostility to U.S.
interests, proven intent to act against those interests, WMD
acquisition, continued pursuit of WMD, history of using WMD to
achieve foreign policy objectives, and ties to international
terrorists combine to make him uniquely dangerous to the United
States. When his behavior is juxtaposed with the lessons learned
through the September 11 attacks, it becomes clear that Saddam
poses a threat that must be dealt with immediately. The foregoing
five lessons apply to Iraq in the following ways:
APPLIED LESSON
#1: Warnings have not deterred Iraq from overtly hostile actions
that threaten the United States and its interests. Saddam
Hussein, like so many other dictators throughout the world, is a
danger to his own people. However, he is different in that he is
also a direct and near-term threat to the United States and its
interests. A recent video released by the U.S. Department of
Defense showing Iraqi missiles firing on U.S. aircraft enforcing
the United Nations no-fly zones over northern and southern Iraq
demonstrates Saddam's belligerence.
President George W. Bush described the threat aptly when he
said,
We can harbor no illusions. Saddam Hussein
attacked Iran in 1980 and Kuwait in 1990. He has fired ballistic
missiles at Iran, Saudi Arabia, Bahrain and Israel. His regime once
ordered the killing of every person between the ages of 15 and 70
in certain Kurdish villages in Northern Iraq. He has gassed many
Iranians and 40 Iraqi villages.
This aggressive behavior is a clear
attempt to dominate the region through intimidation and coercion.
However, the most direct threat that Saddam poses to the United
States is his WMD activities, coupled with his involvement in
international terrorism. Many warnings and obstacles have been put
forward to coerce Saddam into behaving in a less aggressive way,
yet none have deterred him.
APPLIED LESSON
#2: Iraq's ongoing development of weapons of mass destruction means
that the United States or its interests could be the targets of an
attack with little or no warning. Iraq has
a 30-year history of WMD programs. In defiance of U.N. Security
Council Resolution 687, Iraq continues to build and develop its
biological, chemical, nuclear, and long-range ballistic missile
programs. As stated so clearly by President Bush,
Today, Iraq continues to withhold
important information about its nuclear program--weapons design,
procurement logs, experimental data, an accounting of nuclear
materials and documentation of foreign assistance. Iraq employs
capable nuclear scientists and technicians. It retains physical
infrastructure needed to build a nuclear weapon. Iraq has made
several attempts to buy high-strength aluminum tubes used to enrich
uranium for a nuclear weapon.
Recent evidence, supported by a wealth of
Iraqi government contracts, concludes that Iraq has at least 20
covert facilities where chemical, biological, and nuclear weapons
are produced. Moreover, Saddam Hussein
continues to seek dual-use infrastructure to conceal his plans to
build a robust WMD arsenal. As President Bush noted, recent reports
contend that Saddam Hussein has aggressively sought to import
thousands of high-strength aluminum tubes that can be reconfigured
to enrich uranium, a necessary component for a nuclear device.
APPLIED LESSON
#3: Iraq's history of using WMD demonstrates the likelihood that it
will use them in the future. Iraq is
not only actively seeking WMD, but also has a history of using them
to achieve military aims. In 1982, Iraq used riot-control agents
against Iranian attacks. From that point, Iraq quickly began to use
more deadly agents, including mustard gas in 1983 and tabun in
1984, becoming the first nation to use a nerve agent in a war. The
State Department lists 10 incidents of Iraqi chemical attacks
between August 1983 and March 1988. All were launched against
Iranian and Kurdish populations, resulting in casualty tolls in the
tens of thousands.
Not only did Saddam Hussein test his
biological weapons on animals, especially large mammals, but it is
suspected that testing was done on humans as well. Although Iraq's
Deputy Prime Minister Tariq Aziz adamantly denies human testing,
the United Nations Special Commission, known as UNSCOM, reported
that investigative teams discovered two human-size inhalation
chambers. Former U.N. weapons inspector
Scott Ritter explained the program in detail. In 1995, according to
Ritter, live tests of binary biological and chemical weapons were
conducted on nearly 50 subjects taken from Abu Ghaib prison.
APPLIED LESSON
#4: Iraq's aggression and ties to international terrorism comprise
a deadly combination that must be confronted. U.N. Security Council
Resolutions 687 and 1373 prohibit Saddam Hussein from supporting
terrorism or allowing terrorist cells and organizations to operate
within the boundaries of Iraq. Yet Saddam continues to flout these
resolutions. When President Bush made his case against Iraq to the
U.N. General Assembly, he cited several instances in which Iraq was
found to be involved in terrorist acts. According to President
Bush,
in violation of Security Council
Resolution 1373, Iraq continues to shelter and support terrorist
organizations that direct violence against Iran, Israel, and
Western governments. Iraqi dissidents abroad are targeted for
murder. In 1993, Iraq attempted to assassinate the Emir of Kuwait
and a former American President. Iraq's government openly praised
the attacks of September the 11th. And al Qaeda terrorists escaped
from Afghanistan and are known to be in Iraq.
Recognized by the State Department as a
state sponsor of terrorism, Iraq is believed to provide shelter to
several terrorist groups, including the Mujahedin-e-Khalq
Organization (MKO) and several Palestinian-sponsored groups
responsible for deadly attacks on Israel. More ominously, Saddam
Hussein overtly provides money to relatives of terrorist suicide
bombers sympathetic to the Palestinian cause. Through graduated
rewards, this program actively encourages these suicide murderers.
Reward amounts are linked to the injury sustained by each bomber;
dying as a "martyr" receives the greatest reward. Furthermore,
testimonies obtained from defected Iraqi military officers describe
an elite training facility in Iraq commonly referred to as Salman
Pak, where Arabs with terrorist inclinations can receive extensive
training.
APPLIED LESSON
#5: Iraq's blatant disregard for its 1991 cease-fire agreement
makes it clear that its vision of the future is incompatible with
America's security. Saddam Hussein has defied at least 16
Security Council resolutions, including the terms of the 1991
cease-fire that should have ended hostilities between the U.S.-led
United Nations coalition and Iraq. Such
flagrant violations--including his refusal to comply with weapons
inspectors; his continued development of robust biological,
chemical, and nuclear weapons programs; and his efforts to rearm
Iraq through an elaborate oil-for-arms smuggling ring--pose a grave
threat to the United States, its allies, and its interests in the
Middle East.
The list of Saddam's systematic violations
of Security Council resolutions includes disregarding resolutions
that required him to cease the torture and unnecessary imprisonment
of opposition groups; to provide for the immediate repatriation of
prisoners of war and other political detainees; to cease amassing
and destroy all chemical, biological, nuclear, and ballistic
missile programs and associated infrastructure; to cease sheltering
terrorists and terrorist groups; and to allow for monitoring and
inspection to verify Iraqi compliance. He has complied with none of
these resolutions.
Next Steps
A
year after the terrorist attacks of September 11, the United States
remains at war. Indeed, according to Vice President Richard Cheney,
"We are still closer to the beginning of this war than to its
end." Although the Taliban has
fallen and al-Qaeda is on the run, the reality is that the United
States and its interests abroad remain directly threatened by
global terrorism and weapons of mass destruction in the hands of
terrorist states.
The
next priority in the war on terrorism must be to address the threat
posed by Iraq. The domestic and international legal authority for
such action is in place.
Congress. Congress has already given its
support for the use of force against Saddam Hussein. Nevertheless, the President
has said that he would consult Congress again before committing
armed forces against Iraq. Indeed, the Administration
has submitted a draft resolution on the matter.
This
consultation, however, is a useful action aimed at
consensus-building and not a legal necessity. In 1991, Congress
passed the Authorization to Use Force Against Iraq Resolution. This
legislation authorized the use of force against Iraq to enforce the
Security Council resolution related to Iraq's invasion of Kuwait
and specifically cited Saddam Hussein's involvement in weapons of
mass destruction as a threat to be addressed. Again in 1998, the
Senate passed legislation that urged the President "to take all
necessary and appropriate actions to respond to the threat posed by
Iraq's refusal to end its weapons of mass destruction programs." The threats addressed by
these two resolutions remain in place as Saddam continues to
develop and amass weapons of mass destruction.
The United
Nations. The United Nations has already given its support
for the use of whatever means are necessary to enforce its
resolutions, but the Secretary General has done nothing to enforce
them. The Security Council has passed nearly 60 resolutions on Iraq
and Kuwait since Iraq's invasion of Kuwait in 1990. Resolution 678,
passed on November 29, 1990, authorizes "member states co-operating
with the Government of Kuwait...to use all necessary means" to (1)
implement Security Council Resolution 660 and other resolutions
calling for the end of Iraq's occupation of Kuwait and the
withdrawal of Iraqi forces from Kuwaiti territory and (2) "restore
international peace and security in the area."
In
the Persian Gulf War, U.S.-led forces accomplished the first
objective swiftly; the second, however, has never been achieved.
U.S. and allied air forces have been in nearly constant conflict
with Iraqi forces since Iraq's aggression against Kuwait was
repelled. Resolution 678 has not been rescinded or nullified by
succeeding resolutions. Its authorization of the use of force
against Iraq remains in effect. Furthermore, Iraq's refusal to
allow U.N. weapons inspectors to fulfill their mandate is a
violation of its 1991 cease-fire agreement--a clear indication that
peace has never been achieved.
Since September 11, 2001, President Bush
has shown remarkable leadership, and Congress generally has
supported his efforts to ensure the security of the nation. The
time has now come to move beyond attacking the terrorist
infrastructure that executed last year's attacks and to begin
taking steps to prevent a future attack. To do this:
- The President
must remain steadfast in his approach to Iraq. The
President has taken the right approach in his policy on Iraq. He is
moving thoughtfully and deliberately, making his case to Congress,
America's friends and allies, and the American people. By
addressing the U.N. General Assembly on September 12, 2002, and
providing that body with a plan for enforcing its own resolutions,
he has given the U.N. an opportunity to fulfill its responsibility
to promote peace and stability.
However, by making it clear that if the
United Nations does not take action, the United States will,
President Bush underscored America's right to self-defense.
Furthermore, he has submitted a draft resolution to the U.S.
Congress that would allow him to take whatever action he deems
necessary to prosecute the war on terrorism in Iraq. As he urged in
his speech, the President now must insist that the Security Council
act responsibly by voting on a resolution that holds Iraq
accountable for its commitments. The
President must make it clear to Congress that only a resolution
that gives him ample flexibility to prosecute the war on terrorism
will be acceptable.
- Congress should
vote now to show its support for the President. Congress
owes the American people a public debate and vote on the
application of military force in Iraq. American citizens deserve to
know where each of their elected representatives stands on this
life-and-death issue.
To wait until the United Nations votes on
a resolution, as some have suggested, would be cowardly. The
leaders of both the House and Senate must bear in mind that they
have a responsibility to defend America from threats, both foreign
and domestic, and that this responsibility is theirs regardless of
what any international body believes. For the sake of the nation,
Congress should immediately begin to debate and vote on supporting
the President in the use of whatever means he deems necessary to
defend America from Iraqi weapons of mass destruction.
Conclusion
Now
is the time to take decisive action against Saddam Hussein. The
President began this process with his address to the United Nations
General Assembly on September 12. However, if the U.N. balks at
taking action to address Saddam's violation of its resolutions, the
President still has full legal authority, both from the United
Nations and from the United States Congress, to take whatever
actions may be necessary. Both bodies have already documented their
support for the United States to take all necessary action to
enforce existing U.N. Security Council resolutions. While a new
resolution and a congressional vote might add political momentum to
the effort to eliminate the threat posed by Saddam Hussein, neither
is legally necessary for the President to use military force.
On
September 11, 2001, America came to a new awareness of its own
vulnerability and the nature of the threats that now face the
nation. No longer can the United States wait passively while
hostile regimes foment terrorism, build weapons of mass
destruction, and propagate hatred for America. The war on terrorism
will be long and difficult, but the President has the authority to
prosecute this just war and the responsibility to do so, using
whatever means are at his disposal.
--Jack
Spencer is Policy Analyst for Defense and National Security in
the Kathryn and Shelby Cullom Davis Institute for International
Studies at The Heritage Foundation.